November 01, 2009

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In a secret court ruling earlier this year, a judge denied a request by three prominent American Muslim organizations to reverse federal prosecutors’ designation of the groups as unindicted co-conspirators in a criminal case alleging illegal support for Hamas, according to a source familiar with the ruling and to indications in court files.

However, according to the source, Judge Jorge Solis of Dallas criticized prosecutors for publicly filing the co-conspirators list, which named the Council on American-Islamic Relations, the Islamic Society of North America, and the North American Islamic Trust.

“The ruling was ambiguous,” the source said. “The judge acknowledged the way the whole thing was handled by the prosecutors was not appropriate. On the other hand, he did not really go ahead and reverse the decisions.”

Prosecutors filed the list of about 300 individuals and organizations in 2007 as the government prepared for a trial against the Holy Land Foundation and five of its officers. Prosecutors said the three major Islamic groups had ties to the Muslim Brotherhood, an international Muslim movement which gave rise to Hamas, which has been designated as a terrorist organization by the U.S. since 1995.

CAIR, ISNA and NAIT bitterly objected to the “co-conspirator” label, complaining that they had no ties to terrorism and that they had been unfairly smeared. In motions filed with the federal court in Texas, the groups noted that since they had not been charged as defendants in the case they had no obvious forum in which to clear their names. The organizations also argued that the public filing of the list violated Justice Department guidelines which say such documents should be filed under seal.

A spokeswoman for the U.S. Attorney’s office in Dallas, Kathy Colvin, had no comment on Solis’s ruling. However, in earlier court filings, prosecutors said the unindicted co-conspirator designations were supported by evidence and were needed to permit the admission of important evidence in the Holy Land Foundation case. The government also argued that the groups' reputations would have been sullied by the Holy Land evidence, even if no list was filed.

Until last week, Solis ruling on the conspirator-list issue was not even recorded on the court’s public docket. When POLITICO called last week to inquire about the decision, a clerk said it was “sealed, sealed, sealed.” However, on Wednesday, a notation was added to the docket that acknowledges Solis handed down a secret ruling on the matter on July 1.

“The Court hereby grants in part and denies in part the amicus brief…and third-party motion for equitable relief,” the new entry says, without further explanation.

One open-courts advocate said there was no obvious reason to seal the ruling and that hiding the docket entry for months was even more troubling.

“If the memorandum and order has to be sealed, at least list the fact that it exists,” said Lucy Dalglish of the Reporters Committee for Freedom of the Press. “To hide the fact that it even happened, there’s just no excuse for that—period.”

One of the groups, NAIT, recently filed papers to appeal Solis’s decision to the 5th Circuit. NAIT’s attorney, Thomas Loose, did not return calls seeking comment for this article. In the appeal, Loose said withholding the ruling from the public docket was a procedure “disapproved by two courts of appeals.”

An attorney for CAIR, Nadhira Al-Khalili, declined to comment on Solis’s ruling.

A spokesman for ISNA, Louay Safi, said his organization is also planning an appeal. “We are checking with our counsel to see the best approach,” Safi said.

At a trial for the Holy Land Foundation and its officers in 2007, prosecutors introduced evidence they said linked CAIR, ISNA and NAIT to the “U.S. Muslim Brotherhood Palestine Committee.” However, the evidence of such ties dated to 1993 or earlier, well before dealings with Hamas were effectively banned by the U.S.

Jurors deadlocked or acquitted Holy Land and its officers at the 2007 trial. However, at a retrial in 2008, all five officers and the group were convicted on every charge the government pursued.

The unindicted co-conspirator designation has been a particular headache for CAIR, which had long taken part in community outreach efforts by the FBI but was effectively blacklisted by the Justice Department at about the time the list was filed. Some other federal agencies have also steered clear of CAIR ever since.

CAIR has also been on the receiving end of hostile attention from the right. Earlier this month, Rep. Sue Myrick (R-N.C.) and three other GOP House members accused the group of trying to plant spies in Congressional offices. CAIR said its encouragement to Muslims to seek internships on Capitol Hill was entirely innocuous and consistent with what other advocacy groups have done for decades.

While CAIR has been beleaguered, other groups on the co-conspirator list have not suffered the same fate. In January, ISNA’s president, Ingrid Mattson, offered a prayer at the National Prayer Service President Barack Obama attended as part of his inaugural ceremonies. And White House senior adviser Valerie Jarrett delivered a keynote speech at ISNA’s annual convention in July.

Lawyers for ISNA and NAIT said they were told by a prosecutor in 2007 that he was considering a filing exonerating them, but it never took place.

ISNA and NAIT were originally represented in the case by the American Civil Liberties Union. ACLU officials would not comment on why they are not listed on NAIT’s appeal, which was filed by Loose, a partner at Locke, Lidell & Sapp, the prestigious Texas law firm that is home to former White House Counsel Harriet Miers.

CAIR was originally represented in the case by William Moffitt, a criminal defense lawyer who faced off against the government in two other prominent terrorism-support cases. He died of a stroke in April.